Category Archives: ECHR case-law

This collection of quotes from relevant case-law has been compiled with the purpose of being useful to all those working with EU data protection law. The majority of the selected findings are part of a “Countdown to the GDPR” I conducted on social media, one month before the Regulation became applicable, under #KnowYourCaseLaw. This exercise was prompted by a couple of reasons.

First, data protection in the EU is much older and wider than the General Data Protection Regulation (GDPR) and it has already invited the highest Courts in Europe to weigh in on the protection of this right. Knowing what those Courts have said is essential.

Data protection law in the EU is not only a matter of pure EU law, but also a matter of protecting human rights following the legal framework of the Council of Europe (starting with Article 8 of the European Convention on Human Rights – ‘ECHR’). The interplay between these two legal regimes is very important, given the fact that the EU recognizes fundamental rights protected by the ECHR as general principles of EU law – see Article 6(3) TEU.

Finally, knowing relevant case-law makes the difference between a good privacy professional and a great one.

This is a collection of specific findings of the Court of Justice of the EU (CJEU), the European Court of Human Rights (ECtHR) and one bonus finding of the German Constitutional Court. There are certainly other interesting findings that have not been included here (how about an “Encyclopedia of interesting findings” for the next project?). The ones that have been included provide insight into specific issues, such as the definition of personal data, what constitutes data related to health, what does freely consent mean or what type of interference with fundamental rights is profiling. Readers will even find a quote from a concurring opinion of an ECtHR judge that is prescient, to say the least.

The European Court of Human Rights gave its judgment yesterday in Case Pruteanu v. Romania (Case 30181/05), which concerns the complaint of a lawyer whose conversations with a client were intercepted by prosecutors in the context of a criminal case. The client was not a part of the criminal case, but he was an associate of the accused persons. The recordings were used in the criminal trial, where neither the lawyer, nor his client, were a part. The lawyer wanted to challenge the legality of the interceptions and to require their deletion, but was not able to do so.

The facts of the case bring forward the issue of the extent that third parties whose telephone conversations are recorded following an authorisation to intercept them issued on the name of someone else, enjoy the right to private life under Article 8 of the European Convention of Human Rights.

The Court emphasises in this judgment that an “effective control”, be it a posteriori, of an authorisation to intercept issued by a judge, exercised by a third-party to the authorisation to intercept, is necessary in order to make the interception compliant with the right to private life of the third party.

Facts

“On 1 September 2004 the commercial company M. was barred from carrying out bank transactions. The police received several criminal complaints against the company for deceit. One of the company’s partners, C.I., instructed the applicant as his defence lawyer. On 24 September 2004 the District Court authorised the prosecuting authorities to intercept and record the partners’ telephone conversations for a period of thirty days.

From 27 September to 27 October 2004 the fraud investigation unit intercepted and recorded C.I.’s conversations, including twelve conversations with the applicant. On 21 March 2005 the District Court held that the recordings were relevant to the criminal case against C.I.’s fellow partners in company M., and ordered that the transcripts and the tapes be placed under seal. Mr Pruteanu and C.I. both lodged appeals, which were declared inadmissible” (Source).

Findings of the Court

After stating that any interception of a conversation is an interference in the right to private life, the Court analysed whether this interference is necessary in a democratic society.

The Court notes that “the authorisation to record the conversations of C.I. was given by a tribunal. Nevertheless, that authorisation targeted C.I. and not the applicant, in such a way that it cannot be concluded that the tribunal had examined a priori the necessity of the measure regarding the person concerned. Furthermore, the Court recalls that it already rejected the argument which lead to consider that the mere fact that the person who issues an order and supervises the interceptions is a magistrate implies, ipso facto, the lawfulness and the conformity of the interceptions with Article 8 of the Convention, such a reasoning making any remedy for the interested parties inoperative” (para. 50, my translation; the Court refers here to Matheron case, para. 40).

Further, the Court considers it has to examine “if the applicant had the possibility to appeal a posteriori the recordings in order to control them” (para. 51, my translation).

Analysing the legislation in force at the time of the facts, the Court concluded that the applicant did not have legal standing to intervene in the criminal proceedings in which the recordings were used – “therefore, the applicant could not control, based on his own arguments, the legality and the necessity of the recordings, nor could he require the balancing of the interests of justice with his right to respect for private life and correspondence” (para. 52, my translation).

Considering the only way the applicant could have challenged the legality of the interceptions was during a criminal trial against himself or against his client, the Court concluded that “the accessibility of the remedy for the applicant must be considered uncertain” (para. 54, my translation).

As regards a civil action to request for damages (which was indicated by the Government as an alternative), the Court stated that “the Government did not provide any example of case-law which would prove the effectiveness of this particular remedy. In addition, a complaint in front of the civil judge regarding the pecuniary liability of the state does not have the nature to allow the control of the legality of the recordings and to lead, where appropriate, to a decision to order their destruction – a result sought by the applicant -, so as it cannot be seen as an effective control for the purposes of Article 8” (para. 55, my translation).

It took the European Court of Human Rights 11 years to give its judgment in the case of Bucur and Toma v. Romania, the case of a whistleblower from the Romanian Intelligence Service (SRI) who warned the public in 1996 about the arbitrary wiretapping of journalists and other people by the service (Bucur) and one of the wiretapped journalists and his daughter (Toma and Toma).

The facts of the case have certain similarities to the “Snowden revelations” situation, in that it involves a whistleblower from a secret service which has powers in the field of national security, who warned the public that the service was arbitrarily interfering with the private life (especially, but not only) of journalists, businessmen and politicians, by wiretapping their phones. The decision of the ECHR is interesting because it is dual: it analyzes the situation of the whistleblower, as well as the situation of two individuals who were arbitrarily wiretapped.

ECHR gave its judgment on January 8, 2013, while the request was sent in 2002 (No. 40238/02). It found that, by sentencing Mr. Bucur to 2 years of imprisonment for his revelations for breaching the national security law, Romania had breached Article 10 – freedom of expression, of the European Convention of Human Rights. In addition, the Court found that by allowing the arbitrary wiretapping of Mr. Toma and his daughter, according to Mr. Bucur’s revelations, Romania had breached Article 8 – the right to private life, of the Convention.

Following the decision of the Court, Mr. Bucur received 20.000 EUR as a compensation for moral damages, and Mr. Toma and his daughter each received 7.800 EUR.

What did Mr. Bucur’s revelations say?

Mr. Bucur was an employee of SRI, responsible for monitoring and recording the wiretapped telephone communication of persons listed on a certain registry.

Within the framework of his activity, Mr. Bucur observed several irregularities: pencil was used to write in all the sections of the registry, a registry which was not complete; the real names of the wiretapped persons did not appear in the registry, nor the number of the order to wiretap issued by the prosecutor, the location of the wiretapped telephone, and the purposes of the wiretapping (para. 8). He also observed that the name in the registry did not always indicate the actual owner of the telephone (para. 8). “Furthermore, a considerable number of journalists, politicians and businessmen were wiretapped, especially with regard to resounding stories published by the press” (para. 8 – my translation).

Mr. Bucur took the issue to the head of the department, who reprimanded him: “(the head of the department) had advised him to give up his allegations and reminded him he had other problems and had children to raise, and he reportedly said: <<it is not us who will change how things are>>” (para. 9 – my translation).

Mr. Bucur further took the issue to a member of the Parliamentary Commission of the Control of SRI, who advised him that the best and quickest means to inform the public with regard to these issues is to hold a press conference (para. 10), which Mr. Bucur did on 13 May 1996.

Justification of his actions

According to the Court, he justified his actions by his wish to have Romanian laws complied with, and especially the Constitution. He mentioned that the disclosed information was not state secret, but the proof that SRI was involved in activities of political police, by order of the service’s chief, during a year of parliamentary and presidential elections. He also said that the beneficiaries of the arbitrary wiretapping were only the governing political party, and other political parties for their internal affairs. (para. 10).

Who is Mr. Bucur?

Unlike Mr. Snowden, Mr. Bucur had considerable experience for working in a secret service and surveilling people. He was 44 years old at the time of the revelations. Before working for SRI, he was an employee of the former Securitate forces under the Communist regime of Nicolae Ceauşescu, which was replaced in 1989 by a democratic regime after the Revolution.

In a 2009 interview for the French newspaper L’Express, he admitted that he decided to give this information to the public because he felt that the surveillance in 1995 Romania was even more arbitrary than what happened during the Communist regime: “In 1995 I woke up when I saw the name of many journalists, working for the daily newspapers “Ziua”, “Evenimentul Zilei”, on the list of persons whose conversations were listened to. In 1989, when I was listening to a sportsman, I had to ask for 5 authorizations, I had to make tones of administrative paperwork… In 1995, there was no more such an official aspect (of surveilling – my note): they would give me a piece of paper with the name of the person written with a pencil”.

What did the Court say with regard to Mr. Bucur’s freedom of expression?

The Decision of the Court is ample – having 182 paragraphs, and it is only available in French and Romanian. I will only point out to a few highlights.

-> In deciding whether the interference with Mr. Bucur’s right to freedom of expression was necessary in a democratic society, the Court applied the criteria with regard to public servants whistleblowers, developed in its Guja v. Moldova case (No. 14277, from February 12, 2008, paras. 70-78). The criteria are (NB: this is my translation, not an official one):

f) whether the sanction brought by the state against the whistleblower was severe

-> The Court found, regarding the public interest of the revelations, that: “the information revealed by the applicant is undoubtedly of public interest. The interception of telephone communications is particularly important in a society which has experienced during the communist regime a close surveilling by the secret services. This [the public interest – n.] is also proven by the fact that the press conference of 13 May 1996 was the subject of extensive media coverage, as evidenced by the documents filed by both the applicant and the Government. In addition, civil society was directly affected by the information disclosed, as anyone could have their telephone calls intercepted”. (para 101, my translation).

-> The Court, on the damage brought to the institution, balanced against the public interest: “the Court considers that the public interest in the disclosure of unlawful acts within the activity of SRI is so important in a democratic society that it outweighs the interest to maintain the trust of the public in this institution. The Court recalls in this regard that the free debate on issues of public interest is essential in a democratic state and it is important notto discourage citizens to decide on such issues (Barfod c. Denmark, 22 February 1989 § 29, Series A No. 149)” (para. 115, my translation).

-> Conclusion of the Court: “Recognizing the importance of the right to freedom of expression on matters of public interest, the right of civil servants and other employees to signal unlawful conducts and actions observed within their working place, the duties and responsibility of employees owed to their employers and the right of the latter to manage their staff, the Court, after weighing in the other interests involved, concludes that the interference with the right to freedom of expression of the applicant, in particular his right to communicate information, is not “necessary in a democratic society. Accordingly, there has been a violation of Article 10 of the Convention” (para 120, my translation).

What did the Court say with regard to the right to private life of the wiretapped journalist and his daughter?

The Court only declared admissible the request of Mr. and Ms. Toma with regard to the storage of the files containing recorded telephone conversations (tapes) by SRI, and not the request regarding the wiretapping itself, which was found to have been filed too late, outside the 6 months term required by the Convention.

The Court recalled that “the telephonic communications are comprised in the notions of <<private life>> and <<correspondence>> as enshrined in Article 8(1) of the Convention, their interception, their storage in a secret file, and the communication of data related to the private life of an individual amount to an <<interference of a public authority>> in the exercise of the right guaranteed by Article 8 (see, among others, Dumitru Popescu v. Romania (No. 2), para. 61). For such an interference not to breach Article 8, it should be afforded by law, pursue a legitimate aim in accordance with Article 8(2) and, in addition, it must be necessary in a democratic society to achieve this aim” (para. 162 – my translation).

Among other things, the Court found that although SRI had some procedures regarding the time when a wiretapped conversation will be destroyed when it no longer serves a purpose, the procedures allowed a substantial risk that the conversations would not be destroyed and, thus, could be easily accessible at a later time (para. 164, as synthesized by right2info.org).

The Court considered that the applicants did not enjoy “a sufficient degree of protection against arbitrariness, as requested by Article 8 of the Convention” (para. 165 – my translation).

The European Court of Human Rights in Strasbourg decided on Thursday (16 January) that publishing photos from the wedding of two celebrities in a magazine without their consent, as long as the photos were not taken at the ceremony per se, but outside of the ceremony location, is not a violation of the right to private life as it is enshrined in Article 8 of the European Convention of Human Rights.

The Court decided in its Lillo Stenberg and SÆTHER v. Norway decision (Application no. 13258/09) that “a wedding has a public side” (para. 37), hence “the publication of an article about a wedding cannot itself relate exclusively to details of a person’s private life and have the sole aim of satisfying public curiosity in that respect (see, Von Hannover (no. 2), § 110). It (the Court – n.n.) therefore considers that there was an element of general interest in the article about the applicants’ wedding” (para. 37).

In this regard, the Court entirely admitted the argument of the Supreme Court of Norway, which stated in a decision concerning the facts of the case that “a wedding is a very personal act. At the same time it also has a public side. A wedding is a public affirmation that two persons intend to live together, and has legal consequences in many different sectors of society. Thus information about a wedding does not in itself involve a violation of privacy if it is given in a natural form and based on a reliable source” (see para. 37 of the ECHR Decision).

According to the facts of the case, the first applicant is a musician and the second applicant is an actress. They are both known to the public in Norway. On 20 August 2005, the applicants married in a private ceremony which took place outdoors on an islet in the municipality of Tjøme in the Oslo fjord, approximately 100 km south of the capital. The weekly magazine Se og Hør published a two-page article about the wedding, accompanied by six photographs. The photographs were taken without the consent of the applicants and outside of the premises of the wedding.

Highlights of the judgment

A. Criteria to assess the balance between freedom of expression and the right to private life

The Court reiterated the specific criteria it uses to assess which right prevails in a certain situation – freedom of expression or the right to private life:

“(i) contribution to a debate of general interest

(ii) how well known is the person concerned and what is the subject of the report?

(iii) prior conduct of the person concerned

(iv) method of obtaining the information and its veracity/circumstances in which the photographs were taken

B. Interference with dignity to weigh in between freedom of expression and private life?

Without clearly indicating in the wording of the judgment that it rallies with the point of view of the Norwegian Supreme Court, ECHR pointed out one of the arguments used by the Supreme Court which indicates that an interference with dignity is able to decisively lean in towards the protection of private life or freedom of expression.

“It [the Supreme Court – n.] also pointed out that neither the text nor the photographs in the disputed magazine article contained anything unfavourable to the applicants. It did not contain any criticism, nor was there anything in the content that could damage their reputation“(see para. 41).

C. The implied legitimate expectation of privacy

ECHR accepted the Supreme Court’s view that “since the ceremony took place in an area that was accessible to the public, easily visible, and a popular holiday location, it was likely to attract attention by third parties”, hence “these elements should also be given a certain amount of weight” (see para. 43).

D. The increased autonomy of the national courts

Finally, I have to point out to the reiteration of the ECHR that “although opinions may differ on the outcome of a judgment, where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case‑law, the Court would require strong reasons to substitute its view for that of the domestic courts” (see para. 44).

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